248 Mass. 482 | Mass. | 1924
The three defendants were tried together on separate indictments, each of which charged that the defendant “ did assault Gertrude Butler, with the intent to commit rape upon her; and her, the Gertrude Butler, did . commit rape upon ” in the county of Barnstable on August 16, 1921.
The defendant Andrews seasonably filed the following plea: “ And now comes Joseph Andrews and says that the time of the commission of the alleged offences, he was under the age of seventeen years, a juvenile, and the court has no jurisdiction of the person of the defendant nor has it any jurisdiction of the subject matter contained in the said indictment in so far as it relates to him, the said Joseph Andrews.” “ It was admitted and agreed at the hearing [on the plea] that the said Joseph Andrews was sixteen years of age on the date of the alleged offence but was seventeen years of age at the time of making this plea and motion.” The judge after a hearing overruled the plea and the defendant duly excepted.
The ruling was indisputably right. The statutes upon which the defendant relies, 1906, c. 413, § 1, 1917, c. 326, § 2, now G. L. c. 119, § 52, for the purposes of the act relating to delinquent children defines a “ Delinquent child ” to be “ a child between seven and seventeen who violates any city ordinance or town by-law or commits an offence not punishable by death or by imprisonment for fife.” The crime of rape is punishable “ by imprisonment in the State Prison for fife or for any term of years.” R. L. c. 207, § 22. G. L. c. 265, § 22. As a consequence it follows that it is wholly immaterial that Joseph Andrews was sixteen years of age when the alleged offence was committed.
At the trial, lasting two weeks, all three defendants testified as well as witnesses in their behalf. And each defendant denied the commission of the alleged crime. There were no exceptions to the charge of the judge; no requests for in
The district attorney, in his opening statement of the facts which he expected the evidence would establish, among other things, said to the jury, “ On the fifteenth day of August, the same night that Miss Butler and Eldridge left her home, a Mr. Corbett of Sagamore attended the pictures at the Colonial Theatre, or the entertainment, whether it was pictures or not I do not know. He drove up there in a Ford car, and he left the Ford car at the side of the Colonial Theatre on what is known as Wareham Avenue. You will recall yesterday after we had gone down to Onset and we turned that we went around the corner of the Colonial Theatre and out back on to the State road across the railroad track. He left his automobile shortly after nine o’clock near the rear or side entrance to that Colonial Theatre. That automobile was a Ford automobile; that automobile was found a few days later in what we call, or yesterday spoke of — I think was spoken of on the view — as the old Sandwich road, and that old Sandwich road is opposite, across where the lights were pointed out to you, from the village we first stopped at known as Jungletown, where ■each of these three defendants lived.” At this juncture counsel for the defendants, speaking through Mr. Lewis, interrupted the district attorney and addressed the judge as follows: “ If your Honor will pardon me, if the district attorney does not intend to connect these defendants with this particular Ford car belonging to Mr. Corbett, I desire to save my rights to his opening up on evidence which he may not connect up on.” And speaking through Mr. Sheehan said: “ That is the whole original objection and I wish to save an exception,” thereby referring to an objection before taken to a statement of the district attorney in reference to a motor machine which he alleged “ was despoiled
Gertrude Butler, the woman alleged to have been raped by the defendants, was a witness for the Commonwealth, and while testifying, collapsed, fainted or had a “ spell ” twenty-one times: eight of these on her direct examination. At such times the witness was unable to continue and was removed from the court room. Several times the defendants moved that the case be taken from the jury and a mistrial ordered by reason of her physical and mental condition and because they were prejudiced. On one occasion the judge said in reference to these incidents: “ The witness has either fainted or been taken with some form of nervous disturbance a number of times while testifying, she having begun to testify about 10:45 and it now being 2:20 and has just now suffered the same thing, and on one occasion after the happening of such an occurrence she made some moaning or outcry in the corridor adjoining the court room. In view
The next exceptions argued are to the questions of the district attorney to the witness Butler, “ How did he assault you, Miss Butler? After he was on top of you, how did he assault you; what part of his person, if any part of his person, came in contact with your person? ” These questions, though leading, were properly allowed to be asked in the discretion of the judge. Commonwealth v. Cline, 213 Mass. 225, 227. Commonwealth v. Turner, 224 Mass. 229, 237, 238. The remark of the judge to an exception by the defendants’ counsel, “Yes, but it would be impossible for the district attorney to put it more fairly, I think,
The exceptions saved to the question, “ Did either of these men have relations with you by your consent? ” and to the question “ Were you willing or unwilling for these men to do what they did? ” must be overruled. The state of mind of the witness when the alleged assaults were made upon her was relevant in the proof of a material and all important fact. Commonwealth v. Woodward, 102 Mass. 155, 161. Brown v. State, 127 Wis. 193. Jones v. State, 104 Ala. 30.
The exceptions saved to the questions, “ Did you receive a visit from a physician? ” “ When? ” “ Who was the physician? ” “ Was he the family physician? ” and to the answers thereto, must be overruled. The questions were relevant to an issue of fact which developed later but which had not then appeared. The order of proof, particularly the time of proof, of preliminary facts rested in the discretion of the presiding judge.
The exception saved to the refusal of the judge to admit and require an answer to the question of the defendants, “ Did you know any of the captains on the tugs in the canal? ” must be overruled. If the expected answer was “Yes,” the question and answer could have no legitimate bearing or relevancy in proof or disproof of the character and chastity of the witness. Commonwealth v. Harris, 131 Mass. 336. Commonwealth v. Kaplan, 238 Mass. 250, 255.
The next exceptions relate to the testimony of Lillian W. Kimball. She testified that she lived next door to the Lake-croft Inn; that she kept a store; that she had a five-gallon can on the platform of the store; that she had gasoline for sale; that on the night of August 15, at one o’clock,-the door bell rang; that she unlocked the door and a man, whom she did not identify at the trial and of whom she could not give any description, asked if he could have some gasoline; that she said “ No,” and he went away. In substance, she further testified that, some time after she had fallen asleep, the door bell was rung again and a person who seemed to be the same man asked “ if he could have some gasoline,” and that she
The defendants also excepted to the testimony of the same witness to the effect that she had a five-gallon can on the platform of the store; that the can was empty and was not on the piazza the next morning. The exception to the admission of the testimony and to the refusal to strike it out was properly overruled. The circumstantial evidence in the case warranted the jury in finding that the person who asked for the gasoline was one of the defendants, John Dies. If the jury so found, the evidence of what he said and did at the time and place was incontrovertibly admissible against him, and against the other defendants if he was found to be acting in furtherance of their common purpose. Dies’s connection with the endeavor of some person to get gasoline from the witness could properly
The exception saved to the question to Kelleher, “Was there an automobile in your yard on the night that Dies was there? ” and to the answer “ There was plenty ” must be overruled, because no possible harm could result to the defendants from the question, which manifestly was a preliminary or introductory one not followed by other questions. Barnard v. Bates, 201 Mass. 234.
The testimony of Corbett and Ross, describing the condition of a Ford car, which was alleged to have been stolen from Corbett and to be the car in which Miss Butler was kidnaped and in which the alleged crime of rape was committed, was excepted to on the ground that it was not connected with any of the defendants. The evidence was ample to warrant a finding of the jury that Dies, Gomes and Andrews got into a Ford automobile which belonged to Corbett and drove it away. The exception must be overruled. The motion to strike out the testimony was denied rightly and the exceptions taken to the refusal of the motion must be overruled.
The exceptions saved to the testimony of Alma M. Ross, Myra H. Keene and Thelma W. Keene must be overruled. These witnesses saw an automobile which could have been found to be the Ford automobile stolen from Corbett, a
The evidence of Dr. Snow that he advised Miss Butler to go out on the street, meet people and exercise was admissible to explain what might be argued to be singular conduct in Miss Butler in the evidence that she went out to visit the neighbors on the day of the alleged assault, also on the next day, and that she went to a dance one week, later. ■
The éxception saved to the testimony of James O’Keefe and William Hemmerly must be overruled. That evidence showed that on the night in question a Franklin car was in the yard of the Lakecroft Inn, a little after midnight; that it was left there because of a flat tire, which could not be fixed; that O’Keefe ran the engine of the Franklin, which required gasoline; that he took home the occupants of the Franklin car. The evidence further showed that Hemmerly fixed the tire the next morning and that he then found the gasoline tank practically empty; a plug, which filled it,
The exception to the use of a “ piece of paper ” by the district attorney as a chart, which was not shown to the jury, or admitted in evidence, and to the testimony of Bradford that he had seen marks of the automobile which he had previously seen, must be overruled, as there is nothing in the contention of the defendants that the best evidence of such marks was that gained by the jury when they viewed the premises. There was no error in the questions put to the witness Bourne in reference to the automobile tracks. These questions manifestly were asked for the purpose of making the issue clear to the jury.
The exception to the exclusion of the testimony of the stenographer as to the number of times Gertrude Butler in her testimony answered “ I don’t remember ” and “ I don’t know ” must be overruled. The jury, as the judge said in substance, would not be aided by the evidence offered. It is plain the admission of such evidence or its exclusion must rest in the discretion of the trial judge.
The defendant Dies on cross-examination was asked, “ Didn’t you have something to do with him [Lawyer Sullivan of Middleboro] before you were arrested . . . about this case? ” and he answered, “Not before I was arrested.” No further questions were put in this regard. The defendant could not have been harmed. The exception must be overruled.
On a motion for a new trial there was evidence that one of the jurors was drunk by the voluntary use of intoxicating liquors on Sunday, December 4, 1921; that he was arrested on Monday morning, December 5, 1921, and brought into
We have carefully considered the many exceptions saved by the different defendants not specifically argued in the briefs or spoken of in this opinion and find no error in them or in the refusals of the judge to strike out testimony.
Exceptions overruled.